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Especially Heinous: Guilt and the Prosecution of Sex Crimes

IN THE LAST TWO YEARS, it has been almost impossible to ignore the media’s focus on campus rape, ranging from Jon Krakauer’s book Missoula to Sabrina Erdely’s ill-fated Rolling Stone feature on rape culture at University of Virginia. This exposure has given rise to an increased sensitivity and awareness of what is being called “rape culture” — which broadly includes acts like rape and sexual assault along with sexual harassment and cat-calling. I have lost track of how many articles there have been about whether or not college campuses promote a “rape culture,” and just the other day saw a call for submissions for an anthology on “rape culture” (being edited by praised authors Roxane Gay and Ashley Ford).

The advocates who want to raise awareness about sexual assault on campus emphasize the rights of the victims to a quick resolution that takes their complaints seriously and removes the threat from school grounds. They argue that schools need to do a better job adjudicating rape cases and point to terrifying (and debated) statistics that show one in five women are sexually assaulted in college. This very legal problem (how to punish offenders and prevent further harm) conflates with the deep anxiety about “rape culture” and re-traumatizing rape victims, which has led to anxieties like whether or not to issue “trigger warnings” for law students who study rape law, based on the assumption that some of them may have been victims of sexual violence, as well as a great deal of self-censorship on the part of professors and students for fear of causing offense.

On the other side are those who argue that an exceptional process for rape — one where the victim’s account can’t be questioned and where the accused is presumed to be guilty by virtue of the fact that he has been accused — is procedurally unfair under the law and hurts everyone in the long run. In most instances I have seen, the accused are denied basic rights, as explained in an open letter by several Harvard Law professors, which argues that Harvard’s new policy simply goes too far:

The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.

They suggest that the conflation of “rape culture” with what are essentially extra-judicial rape prosecutions by school administrators leads to a process that is unconstitutional, vague, and ripe for abuse.

The net result is dissatisfying: both sides agree that the process of adjudicating sexual assault in colleges is insufficient. It leaves victims feeling unfulfilled and the accused vulnerable to unfair results and stigma. In other words, either rapists are not punished enough (being expelled for committing a violent crime seems hardly sufficient) or the innocent are being demonized (marking forever a student who did nothing criminal at all is grossly unfair). The whole discussion has also become so inflamed with rhetoric about the pervasiveness of rape and rape culture and the need for increased sensitivity to victims, that college campuses are now being depicted as one of the least safe places to be whether you are a would-be victim or perpetrator, an assertion that is simply untrue. More non-students are raped than students.

Any book about the law of rape sits in this now fascinating and contradictory place in public discourse where the protection of rape victims at all costs intersects with the mass incarceration crisis and the now-obvious fact to both sides of the political spectrum that many people are being over-punished. As someone who has worked with domestic violence survivors and considers herself concerned with issues of criminal justice, I have observed a tumultuous roil of theoretical inconsistency within the liberal media over how to treat rape as a crime that continues to mimic the historical trouble with rape law. I actually think this tension is a good one so long as it’s acknowledged publicly — in other words, we have a social obligation to honor the victim’s pain while also creating a space where rape is not an exception to the rule of due process. The law has always had to balance both sides of this equation, and it does so mostly by the mere fact (or what should be a fact) that crimes are prosecuted by district attorneys who represent the people — all of us — not just the victims.

Writing about this issue is complicated for me, as it is for many. I am a feminist, and it wasn’t long ago that there was little to no awareness or compassion for women who were sexually assaulted or abused in college. I say this because I was one.

When I was assaulted in college, I was sent to a therapist and told that perhaps I was being too sensitive. Then, I was raped and told no one. (By way of background, my university at the time promoted and funded a party where women were regularly sexually assaulted, even raped, and those who opposed a little groping in the name of a good time were not treated kindly.) When I was harassed and assaulted by someone in my dorm, there was no thought that the student be removed. No one even suggested it. Instead, I was invited to participate in some form of mediation where this guy and I would “talk it out.” I declined.

At the same time that I admit this, I retain a deep sense of ambiguity about how I feel, a sort of reluctance to label my own experience, which I think is perfectly valid and something that the current frenzy seems less interested in honoring because it is more morally complicated. I think that, as a practical matter, there needs to be a space where rape doesn’t have to be treated as something freakishly exceptional, which isn’t the same as pretending it doesn’t exist.

I tell all this as a way of offering my certification into a certain group of people, so that when I say that in her 2010 book The Guilt Project: Rape, Morality, and Law, Vanessa Place, an LA criminal defense lawyer and conceptual poet, is right to consider the rights of the accused — those who commit terrible crimes of torture and rape, those that Place admits are guilty — a reader will not think that I ignore the rights of victims any more than Place does. I hated my attacker(s) as much as I could hate anyone and, quite frankly, try not to give them much thought. But, I also don’t think that I am the right person to decide the direction of their lives, just as I think they should not decide mine.

This version of Place’s book has a new introduction that ties the book into what could be called the newest iteration of sex mania: the scourge of rape on college campuses. Place is interested because this crime has become more of a social and moral crime than a legal one, with writerslinkingrapes on campus to things like fraternity parties, songs about assault, binge drinking, and female sexual freedom. Indeed, the worst pubic scorn is reserved for sex offenders (as well as women who lie about being assaulted). All of these are symbols that schools are becoming unsafe for women and that the culture is somehow a dark underbelly of an otherwise okay place.

In her new introduction, Place refutes the notion that colleges — or anywhere else — are perpetrators of “rape culture.” She writes, “Rape is culture. There is no separate ‘rape culture’ bubbling beneath our otherwise sunny American society.” By this, as in much of her book, Place is also trying to implicate the reader as part of that culture. None of us are innocent.

To that end, as Place points out, a single-minded societal focus on the rights of the victim ignores the real role of the law and prosecutors. Prosecutors do not represent victims nor do they speak for them. And taking care of victims, or anyone who perceives herself to be a victim, should in no way relate to the alleged crimes of the accused. To this end, sex cases have served as important moments where that elision is less clear for most people. Instead, Place argues, the law is “really a tension between the person and the People.”

The rest of her book is a powerful reminder of all the ways in which sex crime prosecutions take what is warped about criminal law, about the cult of the victim, and about sex in American culture to produce outcomes that are morally and legally questionable. Place raises legitimate questions and concerns about how society deals with sex offenders. In her job as a public defender, she has worked with some of the most unloved people in society. The people in her book are sometimes misrepresented — as in the case of an intellectually disabled 18-year-old man who was sent to prison for the statutory rape of a willing 13-year-old — and sometimes cruel — as in the case of a man who was convicted of beating and torturing his girlfriend. For all of these accused, Place asks the reader to ask this question: what does the way we judge and punish these people we demonize say about us?

A good primer for the lay reader, Place’s book is a bit dated and many of her ideas have been simmering around for a while. (Although it’s worth pointing out that all of the recent rhetoric on criminal justice reform does not include rapists.) Most of her points are well worth noting: the absurdities of extremely long prisons sentences (one of her clients was sentenced to 1,000 years), the confusion over DNA testing (it’s not a magic bullet although juries think it is), and the unconstitutionality of the indefinite civil commitment of sex offenders using the Static-99 test, which purports to determine whether or not someone will reoffend in the future. These are all problems that have sunk to the silt of criminal justice reforms and will likely remain there because no politician will get votes by rehabilitating sex offenders.

Place’s points are right on for those familiar with criminal justice issues. For example, sex offender registries make it nearly impossible for someone to obtain reasonable housing and employment, making rehabilitation extremely difficult. Plus, in Place’s view (and mine), these registries are unconstitutional — once on a registry, a person cannot be removed. They are basically the definition of indefinite imprisonment, marking someone forever for a crime so heinous that there is no prison sentence long enough to compensate. This view of rape — so immoral that it casts the offender outside of society — seems so incommensurate with a feminist view of the human body, never mind the morally ambiguous situations where juveniles are placed on these registries or when someone is a sex offender for having sex with his (or her) 16-year-old partner.

While Place does want to raise such legitimate social and legal problems, she most of all is asking the reader to take a look at how we judge sex offenders not just from a judicial point of view, but from a moral one. She raises this when she reports that someone once asked her “how she can live with herself” defending the types of people she does. (Is there a touch of fascination and perversion in Place’s own interest?) Place answers this not by calling on the old defense lawyer’s sword — even the guilty need representation — but rather by asking us to think about why it’s so important to separate the human from the evil: “Pretending that certain men are inhuman, or that evil lies outside logic, excuses us personally and politically from calculated mercy. At heart, mercy is simply the steady responsibility to safeguard the humanity of all, including those we hate.” But humans are evil; the rapist is the man next door. That’s the problem.

Place is known as a provocateur, and some readers may toss out the whole book simply because of who she is. As a conceptual poet, she was removed from the AWP program committee because of her art project retweeting lines from Gone With the Wind. To write this review, I went back and reviewed the many charges leveled against her. I found reams of people, a Change.org petition, and various blog posts declaiming Place as a virulent racist. Reading this book, however, it’s hard to reach this conclusion. As a public defender, Place has defended more minorities than not and certainly isn’t afraid to buck popular opinion. In fact, if I were to criticize Place, it would be to say that she is too worried about being criticized, that she feels that she must qualify herself.

I know how she feels because I must do it, too. Like Place, I don’t want to be in a position where women will tell me that I am denying them something because, in fact, I think that in order to talk about sex and rape, we need to separate out the violation and the pain and the crime from the social worry about what this all says about people.

By way of making all of us responsible for “rape culture,” Place draws out the tease between sexual violence and pleasure through media and entertainment — rape-tainment as you will. She discusses the show To Catch a Predator, which is no longer on the air (but might be revived according to some), and explains how it shows the perversion of a culture where Victoria’s Secret catalogs show up unbidden in every mailbox and sexual predators are caught on-air with gleeful relish.

For those who don’t remember or choose to forget, To Catch a Predator featured the host Chris Hansen and a fake house with fake people who posed as potential victims of potential crimes. Potential sexual predators were rooted out from the internet via people pretending to be children and arrived at the Predator house for a “gotcha” of shame, complete with circling bright lights and Hansen’s appearance. They had been caught trying to have sex or thinking about having sex with a 12-year-old. Many came bearing gifts, like chocolate, which only made them look more guilty. Some ran. It was the pleasure of pure voyeurism, a way for the viewers to be both chastised — you’d better not do that! — and morally righteous — at least I didn’t do that! It was vigilante viewer justice at its most entertaining before The Jinx.

This same voyeuristic tendency is present in the many crime shows, most of which now focus on forensics, attempting to bring meaning to a single hair or fiber. I can’t forget the brilliant and addictive Law & Order: SVU franchise where Detective Benson tells the victim of sexual assault, “It’s not your fault. We will get the perp.” And often they do. Sometimes her partner (I prefer Elliot Stabler) beats the jerk to a pulp, and who can blame him? He is scum of the earth, we understand, someone deserving of unlimited suffering, maybe even prison rape. “Now you’ll know how it feels!” Stabler cries in his moment of Chris Hansen gotcha-ness. The victim cries, backlit by shadows. She will never be the same.

I guess the underlying question, though, is whether viewers (mostly women) watch these shows because they are voyeurs, fascinated and repulsed, or because we are enacting some kind of deep pain as fantasy. Past media frenzies over the latest anxieties about sex — the alleged Satanic child abuse rings of the 1980s, the child pornographers, and the sexting teens — all have a bit of titillation in their revulsion. It’s deeply cathartic to witness a sexual predator brought to justice when most of us don’t have such a tidy closure to our pain.

Part of what I think Place is bothered by — and so am I — is the fact that the people who are most worried about campus assault want to see the problem as somehow exceptional, existing in an extra-judicial context where basic constitutional rights should not apply. Those often are the ones most likely to ignore the real suffering of people for whom rape and sexual abuse are everyday occurrences, not extraordinary at all, most of whom are not in college and never will be. Criminal sexual offenses are so despised that those who suffer from the compulsion are punished more harshly than murderers, and the majority of victims are largely ignored because they don’t have much of a voice.

All this debate circles back to the central questions at hand: To what extent are sex crimes exceptional? To what extent are current rape laws and college tribunals immortalizing sexist stereotypes about women and sexuality? Is there a way to divorce the prosecution of sex crimes from the titillating and horrified response of the public when it comes to outlawed sex? Can we still be feminists and ask these questions?

Much of the current debate has been worked through many times before, which perhaps is what inspired Place to reissue her book. In law school, I studied with Janet Halley, who has now assumed a new place in public opinion and was one of the main authors of the Harvard Law letter. The class was titled “Rape, Sexual Harassment, and Pornography,” which I suppose was fair warning for people who took it. For me, it was singularly liberating, introducing me to the idea that rape was not necessarily exceptional, a harm from which no one could ever recover. The class was a place for my ambivalence, for my desire to see both the victim and the perpetrator as human. We strove to find ways to honor hurt without embedding cultural stereotypes into the system.

Recently, Emily Bazelon at The New York Times Magazinewrote about Janet Halley and Catharine MacKinnon as a way of framing this debate for feminism; MacKinnon is someone the new wave of “rape culture” and “trigger warning” advocates have embraced. They seem to conveniently ignore the fact that MacKinnon and others, like Andrea Dworkin, tried to make all pornography illegal as a form of sex trafficking. I do not think the readers of Jezebel or Buzzfeed would support such an ordinance.

Katie J.M. Baker, a young writer at Buzzfeed who exposed “rape culture” for Jezebel, wrote a piece this past spring about trigger warnings in law school. She writes about something she says (via unknown and unnamed sources) is called “rape week” where first year law students learn about sexual assault law. I have never heard of “rape week” (or “free speech week,” “consideration week,” or “International Shoe week”). Her use of unnamed female Harvard law students is disconcerting to me, partly because Baker herself has never studied law and seems to have little idea of what it entails, and partly because I think that such selective opinions warp the whole notion of what a female law student is like.

Baker also makes a fairly tone-deaf comment that more women in law school have experienced rape than have been victims of “regular” assault. (Is assault “regular”? Get mugged, and let me know.) Baker’s Buzzfeed piece and the unknown students she selectively quotes continue to propagate the notion that sexual assault is “unique,” while assault, murder, unwarranted searches, civil rights violations, and burglary are not. In addition to being a troublesome generalization to make without data, I would argue that it is this very exceptionalism of the female body that has led to so much bad law to begin with.

This brings us back to the issue of how rape law relates to the sensitivity about campus sexual assault. The fact that some law is deemed “too traumatic” for discussion seems a problem; the fact that it’s rape law, a law that deals with the government organization of bodies, makes it even more so. Surely there is a way to acknowledge that individual victims suffer without designating some topics as “too disturbing” to even discuss. I fail to see how the concern about trigger warnings is any different legally or morally from a ban on looking at medical pictures of the female anatomy for fear of offending sensibilities. Harvard Law professor Jeannie Suk expressed this eloquently for The New Yorker online, offering her legitimate concern that students consider “trigger warnings” as somehow necessary, which was causing some professors to skip it entirely because rape is so exceptionally traumatic. (Suk’s article also raises the question as to what education is for — are students consumers who have the right to ask for certain content? Or is the university the very place to feel uncomfortable?)

It’s this same exceptionalism that Place wants us to acknowledge, the idea that a woman’s chastity or a child’s innocence is irreplaceable under the law — so irreplaceable that there is no punishment that can be tough enough. When decisions are made under moral panic, when elected judges and DAs know that they must acknowledge and legitimize social anxiety about sex and pornography, people are over-punished and over-criminalized, innocent people slip through the cracks, and inherent evil becomes more important than shared humanity. As a practical decision, there is no study that shows moral panic makes it easier for people to come forward and acknowledge their injury. Fear of being triggered by rape law won’t make better advocates or a more sensitive law school student body. It just makes the unspeakable more unspeakable and reprehensible, to the point that there aren’t even words for the body politic to talk about it. Why should the female body be so dangerous? And why should we let law enshrine this outdated notion?

Place seems to argue that the facts of the case don’t matter. Indeed, guilt and innocence are hardly the point, except the point that we are all guilty or all might be guilty or all might know someone who is guilty. To make the assumption that sexual predators aren’t just like us is to somehow substitute social mores for humanity, a choice that would be a mistake both legally and morally.